Ex Parte (Without Notice) Order (II) – How it is abused

January 10, 2014

By Jeff Jiehui Li


Abuse of ex parte motion

While the law imposes heavy onus on the moving party seeking an ex parte order, in reality the ex parte motion can easily be abused. The most important “guarantee” that an ex parte motion will be fair is the requirement for the moving party to make full and frank disclosure, yet not every moving party will do or is able to do this. A party seeking an order often present the case in light of what that party sees and understands. Therefore, it is not unexpected that the other party may provide dramatically different account of the story of the case. Even worse, many parties will intentionally withhold material facts in order to obtain an ex parte orders.

Unfortunately, once an ex parte order is issued, it may not be set aside as easy as is expected in the current system. While the Rule of Civil Procedure state that an ex parte order must dissolve within 10 days of the issuance, it usually takes longer time to mount an effective challenge. The effects of this is, the receiving person(s) of the order will suffer a great deal of inconvenience and loss.

In a recent case, K.A. v. Michael Paul Mitchell, the plaintiff K.A. obtained an ex parte order against the defendant Mitchell based on a misleading affidavit. K.A. alleged Mitchell pushed her into prostitution when she was 19, kept all her prostitution earnings for his own use, and bought and renovated his Toronto home with ill-gotten money. K.A. applied for an ex parte order for “sweeping interim relief” including a certificate pending litigation, an asset freeze and forced disclosure of documents. The order was granted in January, 2013. Mitchell challenged the order, and revealed such important facts as (a) while claiming Mitchell kept all of her earnings, K.A. had stashed $100,000 in her own private bank account; (b) K.A. had full access to the safe where much of her prostitution earnings remained; and (c) K.A. said she paid a $20,000 advance made from a client toward the house, but in fact she kept most of the money.

In her decision, Justice Susan Chapnik found that K.A. “repeatedly lied to the court by creating a one-sided narrative with reckless disregard for the truth”. To justify a freezing order, for example, normally the moving party must demonstrate the risk of “imminent dissipation” of the assets, but K.A. produced no evidence in this regard. Justice Chapnik concluded K.A.’s affidavit was deficient, untrue and lacking in full and fair disclosure.” The ex parte order was finally set aside, but not until May, 2013. During this month Mitchell had virtually no access to his bank account money.

If a freezing order results only in inconvenience, a custody or access ex parte order can lead to more serious result. As the time a parent spends with the children counts, an ex parte order giving interim custody, or increased access to a parent, will often change the dynamics of the parent-child relationship, which will have an impact on the final result. In some civil and family law cases, ex parte orders may have the effect of pre-judging a case (for example, a house owner is restrained from coming to his own house).

While the abuse of ex parte motion exists, the current system is lacking in the mechanisms to deal with such abuse. Setting aside the order is one way to deal with it, and failure to make full and frank disclosure alone is a ground to set aside an ex parte order. But how can the inconvenience or prejudice suffered by the receiving party of the order be compensated? If the receiving party of an ex parte order succeeds in setting aside the order, he or she may be awarded costs. But costs are often not enough to cover the winning party’s lawyer’s fees, not to say the inconvenience this party suffered.

In K.A. v. Mitchell, Justice Chapnik called for extra caution in granting ex parte orders. This alone is not sufficient to combat the abuse of the ex parte process, however.


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